2015 (3) TMI 435 - HC - Service Tax

Jurisdiction of Tribunal - appeal in respect of rebate claims made under the Finance Act, 1994 - issue related to claim for rebate on the services exported - Held that - various subsections of section 86 would enable the Appellate Tribunal to deal with the Appeal and what the Tribunal has noted in this case is only subsection (7) of section 86. That is enabling it to apply the same provisions of the Central Excise Act,1944 while dealing with the Appeals under section 86. Thus,the same powers and the same procedure as is provided in Central Excise Act,1944 while dealing with Appeals may be followed by the Tribunal. The Tribunal,thus,has the same powers and can follow identical procedure as is found in Central Excise Act,1944. To our mind,this was not the provision which could have enabled the Tribunal in this case to rely on the issue of maintainability or competency of the Appeal. The Tribunal has clearly missed and omitted from consideration subsection (2A) of section 86. In this case,it is the Committee of Commissioners which objected to the order passed by the Commissioner of Central Excise (Appeals) and directed the Central Excise Officer to appeal on its behalf to the Appellate Tribunal against that order. This Appeal was clearly maintainable and should have been entertained and decided on merits. The subject Appeal therefore could not have been dismissed for want of jurisdiction. - Decided in favor of revenue.

Summary

Issues:
Jurisdiction of the Tribunal to entertain an Appeal regarding rebate claims made under the Finance Act, 1994.

Analysis:

1. The Tribunal held that the Appeal filed by the Revenue was incompetent and not maintainable based on the interpretation of legal provisions. The Commissioner of Central Excise (Appeals) set aside the original order, leading the Revenue to approach the Tribunal for relief.

2. The Respondent Assessee, engaged in providing services under a manpower recruitment agency, filed a claim for rebate on exported services. The claim was rejected by the Assistant Commissioner, leading to an Appeal before the Commissioner of Central Excise (Appeals), which was allowed.

3. The Tribunal found the Appeal to be incompetent based on section 35B of the Central Excise Act, stating that no Appeal lies in cases of rebate of duty of excise on goods exported. The Tribunal applied this provision to the service tax rebate claim, deeming the Appeal incompetent.

4. The Tribunal's decision was based on its understanding of having the same powers as under the Central Excise Act, regarding Appeals under the Finance Act, 1994, concluding that no Appeal would lie against the Commissioner (Appeals) order in rebate claims.

5. The High Court analyzed the relevant statutory provisions, particularly section 83 of the Finance Act, incorporating provisions from the Central Excise Act, 1944, regarding adjudication and Appeals to the Commissioner of Central Excise.

6. The High Court noted that the Tribunal overlooked subsection (2A) of section 86, which allows for Appeals to be filed by the Committee of Commissioners if they object to the order of the Commissioner of Central Excise (Appeals). In this case, the Appeal should have been maintained and decided on merits.

7. The High Court allowed the Appeal, setting aside the Tribunal's order, and directed the Tribunal to consider the Appeal on its merits and in accordance with the law. The Court referenced a judgment from the High Court of Delhi, supporting its decision on the maintainability of the Appeal.